happy new year everybody
and howdo ?

anyway, ahem ...
have a cl. from hungary who came to u.k approx 2000.
since then she has been almost continually employed.
however, in oct 07 she separated from her husband, and on the advice of jcp, it would appear, incorrectly claimed i.s because she has to be a workseeker.
we have assisted her with a claim for j.s.a and are examining whether we can appeal the i.s decision.

cl. is continuing to receive c.b, and h.b / c.t.b, but has received notification that her c.t.c has ceased because no longer qualifies

my question is, if an a8 national stops work and their i.s claim is refused, no j.s.a claim active, should they still be entitled to receive c.b, c.t.c, and h.b / c.t.b ?

as ever, hope my q. has made sense, and trust everybody is having a good week ...

pete

I would have thought that, as a former worker who has worked for seven years continuously she would be exempt from both the R2R and the Habitual Residence test and entitled to all benefits including I.S.

I could be wrong but I don't think former workers are restricted to work seekers benefits after 3 years.

If I am wrong, have a look at all the Baumbast threads, assuming she has school aged children (hence getting I.S). I'm not sure if you can still rely on it.

hi chris !

unfortunately her child is aged one, and i feel as you do re : length of time cl. in u.k without claiming out of work means tested benefits ... if that makes sense ? and i have used that argument in my request for a reconsideration of the i.s decision.

the 3 year rule you mention is new to me but maybe someone else can shed some light on that ?

anyway, ta for your response and will try to let you know how i get on with this.

pete

Thu 10-Jan-08 11:18 AM by ken

Edited to update link

Actually I was completely wrong

2 years is enough for permanent incapacity and 3 years for retirement, but that doesn't help for lone parents. I do believe there have been attempts made to say that a client may still be a work seeker, even while claiming I.S. but I don't actually know how they turned out.

After reading the very fine CPAG guide to challenging R2R decisions (July 2007) all may not be lost.

Under the heading "Is your client a lone parent?", it indicates that someone who: has established a permanent right of residence either because they have been economically active for 5 years or because they were previously a worker in the UK and have a child in education, can retain a right to reside even if they are not signing on or working.

Under an earlier heading "has your client previously had a right of residence in the U.k because they have worked?" It says that clients may argue that they are entitled to equal treatment to Social Security under Article 12 of the EC treaty. However, it goes on to say that even though EC caselaw should take precedence the U.K judiciary don't appear to accept this.

One other, since there was clearly official misdirection in your case your client can request 3 months backdating if they now claim J.S.A.

see http://www.cpag.org.uk/cro/Briefings/RightToReside1007.doc

On another point I understand that there can be an exception if the seperation from the former partner is down to domestic violence.

hello and thankyou once more !

i have requested j.s.a backdating on misdirection grounds but you know how it is, jobcentreplus vigourously deny that this has occurred but we shall see ?

and do'h ! i had printed off the cpag guide to challenging r2r decisions (which is very fine by the way) several months ago and thanx for reminding me of that section on lone parents.

it supports my argument in my initial appeal that because the cl. has been here economically active for 5 years plus etc.

well, have a good week and cheers once more ...

pete